"... if small, unobtrusive cameras had been there to record what was going on. With or without cameras, Justice Antonin Scalia was his spirited self, demanding that lawyer Theodore Olson tell him 'when did it become unconstitutional to exclude homosexuals from marriage?' Olson's sharp reply would not have been different with cameras on hand. 'When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?' Olson said. Judges and lawyers with experience before cameras in other courtrooms universally say that, especially at the appellate level, the questioning, listening and responding demand all their faculties. They soon forget cameras are there."

The fast-paced show has attracted a wide viewership, but has also earned itself its fair share of detractors. Youssef has been a frequent target of lawsuits, most of them brought by Islamist lawyers who have accused him of "corrupting morals" or violating "religious principles."...

In a post on his official Twitter account, Youssef said he will hand himself in to the prosecutor's office Sunday. He then added, with his typical sarcasm: "Unless they kindly send a police van today and save me the transportation hassle."

Is texting while breastfeeding any different from reading or watching television while breastfeeding? How bored do you need to allow yourself to get before you can give yourself credit for being a good enough mother? And you'll never be good enough, because the bored-out-of-her-skull mother isn't very good. And let's say you could force yourself to always believe that your children are not only endlessly fascinating, but fascinating in a way that leaves no room for other interests: Would your marriage work out? If not, now, you've hurt those kids. Would the kids truly and perfectly benefit from having a mother who found them endlessly fascinating and utterly fulfilling? I suspect that by the time they turned 13, they'd be telling her she's out of her fucking mind.

That money could have been used to give struggling children extra academic support. Stacey Johnson, a Parks teacher, told investigators that she had students in her class who had scored proficient on state tests in previous years but were actually reading on the first-grade level. Cheating masked the deficiencies and skewed the diagnosis.

Meanwhile, the Atlanta school district superintendent, Beverly L. Hall — indicted yesterday — "earned more than $500,000 in performance bonuses while superintendent." And:

Teachers and principals whose students had high test scores received tenure and thousands of dollars in performance bonuses. Otherwise, as one teacher explained, it was "low score out the door."

This is terrible, but it's only an extreme permutation of the deep structural problem that permeates schooling: teachers and administrators have a conflict of interest with the children who are at their mercy.

Nearly all of the mass shootings in this country in recent years — not just Newtown, Aurora, Fort Hood, Tucson and Columbine — have been committed by white men and boys. Yet when the National Rifle Association (NRA), led by white men, held a news conference after the Newtown massacre to advise Americans on how to reduce gun violence, its leaders’ opinions were widely discussed.

Unlike other groups, white men are not used to being singled out. So we expect that many of them will protest it is unfair if we talk about them. But our nation must correctly define their contribution to our problem of gun violence if it is to be solved....

I would have thought white men were the one group that American elite media does feel free to single out... as evidenced by this article. And I didn't know we were calling the Fort Hood killer a "white man." But I'm sure you can find some other problems with this piece.

March 29, 2013

"One of the great moments" in Alexandra Pelosi's HBO documentary "Fall to Grace," according to Carl Swanson in New York Magazine. The documentarian daughter of Nancy Pelosi is interviewing disgraced former NJ Governor Jim McGreevey.

Pelosi tells me the lesson of the documentary is “Don’t let the worst thing you did define who you are now. Think of it as Tony Robbins for the HBO-documentary set.” I ask her if she worries that she is essentially enabling McGreevey’s need for attention, and she admits that the idea “does keep her up at nights.”

This is my second post of the day about McGreevey. The first was about a NYT article that was either atrocious or brilliant satire. I'm writing this one because I have now watched the "Fall to Grace," and I just want to say it's horrible. Pelosi didn't get much good footage, and we mostly see women in prison going through prison therapy, a topic that could be handled in many different ways by serious film documentarians but is here used to promote McGreevey, whom the women just adore, because he tells them they should not be defined by the worst things they've done.

Why is McGreevey doing therapy in women's prisons? Because he left the Catholic Church (because they won't let you feel good about being gay) and went to Episcopalian seminary (where it's apparently okay both to be gay and to have a gay sexual relationship), but the Episcopalians rejected him for the priesthood anyway. Is McGreevey angling to get back into politics? I bet he is, in which case Pelosi's puff piece is supposed to help. It shouldn't though, because it's so awful. Worst thing about it? The maudlin tinkling piano soundtrack that never shuts up.

Students at Johns Hopkins University’s medical school are circulating a petition to replace Dr. Benjamin Carson as their commencement speaker after the famed neurosurgeon... [said on Sean Hannity's show] on Tuesday that opposite-sex marriage is “a well-established, fundamental pillar of society and no group, be they gays, be they NAMBLA, be they people who believe in bestiality — it doesn’t matter what they are. They don’t get to change the definition.”

How many? Marty Lederman says he'd originally thought there were 5: 1. no standing, 2. uphold Prop 8 on the merits, 3. reject Prop 8 in a way that relates only to California, 4. reject Prop 8 in a way that would also require gay marriage in the 8 states that have civil unions for gay couples, and 5. find a constitutional right to same-sex marriage that would apply throughout the country. Now, he sees 2 more options: 6. dismiss the petition (decide it was a mistake to take the case at all), and 7. vacate and remand for reconsideration in light of whatever it does in the DOMA case.

Lederman thinks you can't tell from the oral argument, in which it seemed that at least some of the Justices were struggling to try to figure out what to do, but he thinks 2, 3, 5, and 7 are unlikely and 6 is also pretty unlikely.

So what about 1 (standing)?

... Justice Kennedy, expressed concern that if the Court were to hold that the Proposition 8 proponents lack Article III standing because they are not agents of the state of California... such a ruling might invite executive officials in California to effectively “thwart the initiative process” (Justice Kennedy’s words), simply by refusing to appeal lower court rulings declaring that such initiatives are invalid....

And 4 (reaching the merits and covering 8 states)?

To be sure, Justice Kennedy stated that it would be “very odd” for California to in effect be “penalized” for being “more open to protecting same-sex couples than almost any State in the Union.” To like effect, Justice Sotomayor said that there would be an “irony” if “States that do more [for same-sex couples] have less rights.”...

But that objection doesn’t quite capture the fundamental nature of the eight-state argument—namely, that it’s an underinclusiveness argument of the sort the Court often invokes to explain why a state’s defense of a law is inadequate.

Actually, everything seems unlikely and unsatisfying... and yet there will be a decision. I note that there could be an outcome without any rationale commanding a majority. That should be considered the 8th possibility. The 8th option for Prop 8.

"... and further how in the world will all that mess ever close back, depicted in black and white and in a smaller scale behind all of that,Jesus of Nazareth ascends in triumphant pose presiding over all, but his astonishing Earth-shattering demonstration of survival of the death experience goes unnoticed because attention is misdirected to the movement of colorful eggs."

Laurie Fenlason, Smith's vice president for public affairs, said the school does not comment on the status or admissibility of individual applicants. But she added, "Every application to Smith is treated on a case-by-case basis, and application materials must reflect female identity."

Smith also has legal concerns over changing its admissions policies, Fenlason said. Schools such as Smith are concerned they could lose federal funding under Title IX, a law that bans sexual discrimination in education but exempts single-sex institutions.

Female identity... that sounds like they've already worked out the answer for the future. Beyond that, they can't say why they rejected the applicant, Calliope Wong. They're not allowed to talk about that. It's Wong going public, making the claim, enlisting social media in publicizing it.

Later in the evening, having noticed the criticisms on Twitter, his co-commentator Charles Barkley said:

"I know this has nothing to do with the game. I wanna say something about Doug Gottlieb. He made a joke earlier tonight. All those people on Twitter who are going crazy, which I would never ever do, listen me Kenny, Greg Anthony, and Greg Gumbel didn’t take that personally so all you people at home who've got no life who are talking bad about Doug Gottlieb get a life. It's no big deal."

Big deal or not, Gottlieb apologized — "It was not a smart thing to say and I apologize" — which I take it is kind of the white man's perspective.

One of many hard-to-believe sentences in this long NYT article about James McGreevey, the disgraced former governor of New Jersey. He's 55, not 75. He got into trouble putting his lover on the state payroll in 2004, not 1974. He's a big old fraud in my book, and his effort to cloak himself in "I am a gay American" sentimentality is disgusting.

Relentlessly excavating his heart and soul, he later went into psychotherapy and resurrected the calling he said he had felt since he was an altar boy in Carteret, N.J. Now an Episcopalian with a degree in divinity from the General Theological Seminary, he’s embracing the Lord’s work with the same fervor with which he once pursued politics.

Look, I hope he's turned his life into service and good works, but this article is fawning — PR-style.

Until recently, Mr. McGreevey and his partner had kept their relationship private. This Thursday, however, is the debut of Alexandra Pelosi’s HBO documentary “Fall to Grace,” which explores his spiritual makeover, so he’s sharing the happily-ever-after.

Sharing the happily-ever-after? Who talks like that?

Not, he stipulates, because he’s after another ego jolt like the sort he craved as a politico, but because he’s eager to focus attention on his work.

Oh, he stipulates? Sorry, this is just making me believe he’s after another ego jolt like the sort he craved as a politico. Did the NYT writer think that passing along this fawning PR was a joke — a nudge to make us think this is such bullshit? We're shown McGreevey's partner, an "Australian financier," 9 years his junior who — we're told is "[s]turdy and handsome in an unpolished way" and "with taste for modern art." The modern art taste is nowhere to be seen in the photograph of the pair in their "pistachio-walled conservatory with worn-leather sofas and ethnic touches that could have been conjured by Ralph Lauren."

With severely cropped hair, khakis and navy sweater pocked with moth holes (his uniform), the ex-governor has the look of a missionary. Upbeat and charismatic, he laughs easily and often exclaims, “God bless!” Mr. O’Donnell has a warier, more reserved air — at least, when he’s on the record. Wearing smart corduroys and a taupe cardigan, he keeps his phone in hand and peers at the screen through thick-rimmed glasses.

Smart corduroys? Cardigan?

ADDED: The cardigan is the main thing that pushed me over the line to finding this article bloggable, because I'd just read this question in the Gentleman Scholar advice column at Slate:

Out of nowhere, my husband of 21 years has started wearing cardigan sweaters. I can't tell you how much this turns me off—the soft, sloppy, indecisiveness of the garment, not jacket, but not fully committed to being a sweater, either. He will point to younger men wearing them and say, "See? I'm bringing them back." The thing is, I'm not going home with those younger men and I don't know why the younger men are wearing them, maybe it's ironic or something? I don't know. But when I see a man in a cardigan, all I can think is Mr. Rogers. My husband usually has excellent taste but every now and then he likes to rock something positively cringe-worthy. He doesn't like me to tell him what to wear. Do I just suck it up? Or do I draw a line in the sand? Thank you!

... Like many petty criminals snared by sentencing rules aimed at drug kingpins, Ms. Dallaire had virtually no hope of an early release, even after the Supreme Court’s 2005 decision and subsequent Congressional action reducing prison terms in crack cocaine cases. She got there through an exquisitely rare constellation — her exemplary prison record, Judge Lagueux’s nagging conscience and the interest of another judge who persuaded a top lawyer to volunteer his time to work for her release. Without those, Ms. Dallaire would still be working three jobs at the Danbury federal prison.

“There are a lot of people like Denise doing bone-crushing time under the old sentencing regime, and we need to try to find ways to help them,” said Judge John Gleeson....

Fascinating to hear it phrased that way by Rush Limbaugh, who for years — for mockery purposes — has played the audio clip of Harry Reid saying "This war is lost."

The Reid clip works as mockery because Reid was so wrong, wrong about the war being lost and wrong to express the demoralizing opinion. So in Rush's statement yesterday I hear a little nudge, a little cue that the issue isn't lost. Rush is answering an email from someone who feels that Rush has never expressed his opinion on gay marriage, and Rush begins with "Is my position on this really not known?"

This is a great teaser, keeping us listening at the end of the third hour of the show, which has already been full of talk about gay marriage. We're brought up short: Do we really not know what Rush thinks on the subject? He shifts away from that topic to a reverie about a conversation with a friend about "the left" and "the language game." We're looking at the show transcript here, but as a subscriber to the website, I'm hearing the audio as well, and it's slow and drawn out, like he's going to circle around before he gets to answering that emailed question, which nags me: I find myself assuming that Rush doesn't really care what gay people do in their private lives. He's not bound enough to tradition to have kept his own marriage vows, having divorced 3 times, and he hasn't put his life's energy into raising children. If gay people want to commit to monogamy, let them have their go at it. Good luck being better at it than I've been. That's what I think he thinks.

We're told the neighbors haven't approached Maria directly yet because they like her and don't want to hurt her feelings ... but in typical passive aggressive neighborly fashion, they're hoping word will make its way back to her.

How do you solve a problem like Maria? How do you hold a moonbeam in your hand?

[T]he U.S. attorney's office in the Northern District of Illinois maintains that federal weapons law enforcement is among the top priorities of their office. "We have a number of different methods of attacking gangs, guns, drugs and violent crime," says spokesman Randall Sanborn, who notes that many gun arrests are reviewed to determine whether the arrest should stay with the county or be brought to the federal level. "We look at which court the defendant is likely to get a substantially greater sentence... More cases that used to be brought federally are now staying in state courts because [they are] now able to get a sentence equally great or greater," he says....

While the districts that ranked lowest last year for federal gun crime prosecutions all contained major cities, the districts at the top of the list for its enforcement were almost exclusively rural. The districts of Southern Alaska, Kansas and Western Tennessee ranked first, second and third in prosecutions of federal weapons laws per capita last year.

So Chicago ranks last in federal prosecutions because there's more state law regulating guns and there's more enthusiasm among state prosecutors about enforcing it. Street-level violence is more properly handled in state court. Unless you've got interstate webs of criminal activity, gun crimes shouldn't be cluttering up the relatively scarce federal district courts (which have to handle civil and criminal cases). What seems to be happening in Chicago is a preferable allocation of federal and state power.

The reason other areas have a higher proportion of federal gun-crime prosecutions seems to be that there's much less state-level enthusiasm about gun crimes and the feds are stepping in to fill the gap. Depending on what crimes are prosecuted, you might want to criticize the feds for oppressing the people in the states that — following their vision of government — have a more easygoing attitude about what people do with guns (perhaps because people around them aren't doing such bad things, as they are in Chicago). But you've got to perceive the way these sparsely populated places are getting proportionately more prosecutions and thereby driving places like Chicago lower on the TRAC list of federal prosecutions rankings.

Writes Dana Milbank, in a slight twist of the usual lazy journalist approach to covering the Supreme Court: Inform readers that Anthony Kennedy is the swing vote, pull his statements/questions out the transcript, and riff about them — What's he thinking? Who knows? Could go either way — and let him know — subtly or unsubtly — how much you'll love him if he does what you want and how he risks his social and historical standing if he does not.

There's an issue of "standing" in both same-sex marriage cases. Standing — the legal doctrine — has to do with whether the party seeking access to the judicial process has a concrete and particularized injury that is fairly traceable to the opposing party and likely to be redressed if he happens to prevail on the legal issue. But the real issue of standing — these journalists make me think — is Justice Kennedy's standing within the elite crowd of politics, academia, and journalism.

Milbank's riff is: He can already tell.

Early in the oral argument [in Windsor], the conservatives — Antonin Scalia, Samuel Alito and Chief Justice John Roberts (a silent Clarence Thomas can be assumed to be their tacit tagalong) — explored the idea that the case might be disposed of on the technical grounds that no injury had been proved, a technique that would avoid a ruling calling DOMA unconstitutional.

But Kennedy was having none of it. “It seems to me there’s injury here,” he said.

The swing vote had swung....

Kennedy left little doubt about what he thinks the answer is. When Solicitor General Donald Verrilli argued that DOMA violated the notion of equal protection under the law, Kennedy cut him off. “You are insisting that we get to a very fundamental question about equal protection,” he said, “but we don’t do that unless we assume the law is valid otherwise to begin with.”

And if Kennedy doesn’t assume something, nobody can assume it.

The usual sucking up is not needed.

It's embarrassing to the Court that it is talked about this way, and — ironically — it makes it harder for the Court to find new/bigger individual rights that ordinary people can believe really came out of a dutiful judicial analysis of the law. That unwittingly bolsters the argument for leaving this issue in the arena of majoritarian politics.

“In principle this technique may be extended to visible frequencies; in fact metasurfaces are easier to realize than metamaterials in optics. However, the object size that can be efficiently cloaked with this method scales with the wavelength, so when applied to optical frequencies we may be able to efficiently stop the scattering of only micrometer-sized objects,” the research paper claims.

"... and, suspecting this, an infinite number of women tried to separate him from his money."

I suspected that some of you might be hoping for another sentence from "The Great Gatsby." (Here on the Althouse blog, there's the "Gatsby" project, which happens these days when the mood strikes me, and consists of a sentence from the great novel, taken out of context, to be employed — however you wish — as a conversation piece.)

Today's sentence has a resonance of extravagant numbers: "many times a millionaire" and "an infinite number of women."

There's also the nice hard and soft. Our man is "physically robust" but "soft-minded." Hard and soft might correspond to male and female, but it's the male who is both hard and soft. Hard below the neck and soft above. And the women have enough stuff above the neck to suspect... to get a glimmer of what's going on. They are gold-diggers, but in this case it's only copper. Tawdry!

"... who referred to the unconquered area east of the Rhine as Germania, thus distinguishing it from Gaul (France), which he had conquered...."

In the first years of the 1st century, Roman legions conducted a long campaign in Germania, the area north of the Upper Danube and east of the Rhine, in an attempt to expand the Empire's frontiers and shorten its frontier line. They subdued several Germanic tribes, such as the Cherusci. The tribes became familiar with Roman tactics of warfare while maintaining their tribal identity. In 9 AD, a Cherusci chieftain named Arminius defeated a Roman army in the Battle of the Teutoburg Forest, a victory credited with stopping the Roman advance into Germanic territories and forming the birth of German history....

The standing problem in the DOMA case resulted from Obama's own decision not to defend the law. I'm sure Obama — as an erstwhile lawprof — knows that the Supreme Court doesn't just "weigh in" on issues. It can only decide real adversarial disputes between parties, and his refusal to defend the federal statute is the basis of the argument that this is not a "case" within the meaning of Article III of the Constitution.

And Chief Justice Roberts takes a different tack. This part is about the bizarre situation in which President Obama and Eric Holder have decided that DOMA is unconstitutional, and they won't defend it in the Supreme Court, but they intend to continue applying it. As Roberts puts it: why doesn't the President "have the courage of his convictions" and stop enforcing DOMA — "rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice"?

Justice Kagan quotes from the House of Representatives legislative history of the 1996 Defense of Marriage Act at today's oral argument. (Audio and transcript here. The quote in the title corrects a slightly garbled transcript.) There's a murmur of laughter. Here, listen. This clip includes the response from the very well-prepared Paul Clement, who's defending the federal statute.

DOMA is... unlike most other Acts of Congress in another critical respect: A clearly stated purpose for its enactment was to express moral disapproval of a disfavored minority group. Many proponents repeatedly stated their intent to "honor a collective moral judgment" reflecting "moral disapproval of homosexuality" (House Report at 15-16). Chairman Hyde explained, for example, that "most people do not approve of homosexual conduct * * * and they express their disapprobation through the law." 142 Cong. Rec. H7501 (July 12, 1996). Lead Senate sponsor Don Nickles likewise stated that "we find ourselves at the point today that this legislation is needed" because of the "erosion of values." 142 Cong. Rec. S4870 (May 8, 1996).

Those views no doubt reflect "profound and deep convictions," reflecting the "ethical and moral principles" of those who hold them. [Citation to Lawrence v. Texas]. But this Court has made clear that such "considerations do not answer the question before us." Ibid. No matter how sincerely held, such beliefs are not a constitutionally valid basis for enacting "a classification of persons undertaken for its own sake" and "den[ying] them protection across the board." [Citation to Romer v. Evans].

Here's the audio and transcript for today's oral argument in United States v. Windsor, challenging part of the federal Defense of Marriage Act. I've listened to the whole 2-hour argument and I'm going to pull out a few things in separate posts. The first hour is about whether there is standing — a technical but extremely interesting and difficult issue.

At the beginning of the second hour, Paul Clement is defending DOMA. He states his point clearly: Congress has power to define marriage for the purpose of all the many federal programs that have long relied on a marriage classification, and even though it has long treated couples as married when they are married according to state law, it had the "flexibility" to exclude same-sex marriages when some states switched from the traditional definition of marriage. The states still control the definition of marriage, in this view, and all Congress did was define the scope of the coverage of the federal programs.

The first Justice to break in is Ruth Bader Ginsburg, who seems prepared with her own succinct argument:

Mr. Clement, the problem is if we are totally for it would totally thwart the States' decision that there is a marriage between two people, for the Federal Government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave... one might well ask, what kind of marriage is this?

(The strikeout shows where I corrected the transcript, based on the audio.)

Ginsburg returns to this idea later in the argument, after Clement asserts that the states don't "los[e] any benefits" — they are merely blocked from "open[ing] up an additional class of beneficiaries."

JUSTICE GINSBURG: They're not -- they're not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question. It's -- it's -- as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was you would really [be] diminishing what the State has said is marriage. You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.

It's an interesting puzzle. What is a marriage? Is it the bundle of benefits you receive? Marriage is seen as something left to the states in American federalism, but to say that is to ignore the immensity of what the federal government does, much of it hinging on this marriage classification that refers to state law. You really do have much less of a marriage if you don't get all those federal things, but these federal programs all rest on an enumerated power — taxing, spending, etc. — and why wouldn't the feds, in designing any given program have, within that power, the power to delineate who qualifies?

I'm only talking about whether Congress has an enumerated power, not whether this exercise of that power violates the equal protection right, which is also part of this case. And obviously, I'm not talking about the things government does not even attempt to do with marriage — which is to determine whose love relationships are "full" in an emotional and spiritual way.

I hadn't given much thought to the much-bruited Tiger Woods/Lindsey Vonn romance, but something about that magazine cover set off my bullshit detector. I think his PR people contacted her PR people and this couple was concocted for our consumption. I love the way they are in love... with the camera. Smiley eyes!

"They're a really happy couple -- not living together yet," a source explains to Us Weekly... "He confessed everything in his past to her and stuff - they're really into each other," the source tells Us.

“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments, suggesting that the question should be left to the states. He disagreed with the contention that the federal law simply created a single definition for federal purposes, noting that same-sex couples are not treated the same as other married couples. “It’s not really uniformity,” he said....

It should please conservatives to see an opinion based on the lack of an enumerated federal power. Unlike yesterday's Prop 8 case, the legal problem isn't only about constitutional rights. There's a question of congressional power (which should have been addressed 15+ years ago).

Chief Justice John G. Roberts Jr. and some of the other conservative justices expressed irritation that the case was before them at all because an appeals court threw out the law’s definition of marriage and the Obama administration agreed with that ruling but appealed it anyway. President Obama has declared that the Defense of Marriage Act is unconstitutional and refuses to defend it in court, though the government is continuing to enforce it until the Supreme Court offers a judgment.

Chief Justice Roberts called that a contradiction by the president. “I don’t see why he doesn’t have the courage of his convictions” and not enforce the law if he thinks it is unconstitutional, the chief justice said.

Ha ha. That's what I said in my post earlier this morning: "They're lying back waiting for the Court to do the difficult work.... It might be that the Court shouldn't rescue the administration from its politically uncomfortable position." If the matter belongs in the political area, let them sit in their own mess.

ALSO: If the 4 liberals "see... gay rights" and the 5th vote says there's no enumerated power, there can be a result without an impact on what states can do. The federal government would have to start recognizing same-sex marriages from the states where they are legal, and there wouldn't be any rights-based doctrine applicable to the states. There would be an open question about the part of DOMA that authorizes states to deny recognition to ssms from states that record ssms. The argument for an enumerated power there is somewhat different. If that part of DOMA were stricken down too, there is still an argument that the states could deny recognition to ssms performed elsewhere. In fact, it's an argument DOMA tried to resolve. So somewhere down the line, it's possible that ssm would apply everywhere as long as couples travel to a state that permits them, which would be very easy to do.

Quite aside from ssm, I'm very interested in the mental processes — the emotional metabolism — in forming opinions and making decisions. It's hard even to observe your own. You try or bumble into affecting the mental processes of others, but you don't really know how to do that. Imagine what would happen to us — politically and economically and personally — if others knew how to persuade us. Ah! It's impossible! There are so many politicians and salespersons and stalkers making their pitches. Even if the pitches were perfect, there'd be cacophony, ruining everything.

Persuasion is a mystery. But I will say that I have a superpower here — a strange superpower (which makes me a better lawprof than lawyer) — and that is that I don't feel any need to win. To me, the expression is complete in the writing. I blog for the intrinsic reward of writing and having readers. Thinking out loud — it's so thrilling and intimate and human! You give up the best part if you rework the expression in the hope of manipulating another human mind.

There's a place for writing as a means to an end, but it's not this place.

The Talmud teaches that people should eat enough to fill a third of their stomachs, drink enough to fill another third, and leave a third empty...

Rashi, a medieval French rabbi, interpreted the Talmud to mean that the final empty third is necessary so that the body can metabolize emotions. If one ate until one’s belly was completely full, there’d be no room left to manage one’s emotions and one would burst asunder.

However absurd this may seem to us today, it made physiological sense in the premodern world as the emotions were considered physical things that, like food and drink, were metabolized by the body. A body stuffed with food and drink is full only of biology; it leaves no room for biography, for what makes us human.

It may seem absurd, but it's less absurd than a lot of diet advice, and lofty metaphorical visualizations like this may be better physically and psychologically than fussing over calories and carbohydrates and latching onto the latest report of a scientific study somewhere. This is a realization that extends beyond diet advice. It's a more general idea about the role religion plays for people who are not able or willing to put the time into long, brooding studies of moral philosophy.

ADDED: Maybe Rashi's "burst asunder" referred to vomiting. Presumably, that drink that filled a third of the stomach was alcoholic (in the old days, before water was a reliably healthy drink). With a third food and a third wine in your stomach, piling on more risks losing it all — a waste. You don't need the scientific method to arrive through observation and experience at the idea that one third of the stomach should be left free.

Quite aside from the problem of vomiting — which would be much worse when food was not abundant — there is the sluggishness of mind that we all experience when we've eaten too much. You don't need to know any physiology about blood going to the stomach or whatever to come up with advice about eating less so you can manage your mental processes.

This law was passed in 1996 — almost 20 years ago. Why has it taken so long to get to an answer about its constitutionality? I did a final exam in my Constitutional Law class based on DOMA in, approximately, 1996.

One thing about the current case: It has a crisply defined embodiment of the asserted constitutional right — an 83-year old woman (Edith Windsor) whose spouse died and left her property that would be tax free if the IRS recognized her marriage and who is stuck instead with a $360,000 tax bill.

Her opponent is "United States," a formidable party, usually, but in this case, bizarrely vague:

[I]n February [2011], Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that [DOMA] was unconstitutional and unworthy of defense in court. Mr. Holder added that the administration would continue to enforce the law.

That's unpleasant. They're lying back waiting for the Court to do the difficult work.

[The administration] agrees with Ms. Windsor that the law is unconstitutional, but will not pay her the tax refund she seeks. House Republicans, represented by Paul D. Clement, a former United States solicitor general, intervened in the case to defend the law, losing in the lower courts.

Even though the administration’s legal position prevailed in the lower courts, it filed an appeal to the Supreme Court, saying the matter should be decided by the nation’s highest tribunal.

The Supreme Court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture means the court lacks jurisdiction to decide it. The court scheduled a separate 50-minute argument on that question.

Does anyone want that argument to succeed? But I await Professor Jackson's arguments. It might be that the Court shouldn't rescue the administration from its politically uncomfortable position. But I feel sorry for the Edith Windsors whose cases are not governed by the 2d Circuit opinion.

Justice Alito asked Ted Olson in the Prop 8 oral argument yesterday. Consider the problem of trying to narrow the case by limiting it to California, where voters amended the state constitution to restrict marriage to opposite-sex couples and where they permit civil unions that give gay people access to everything but the word "marriage."

There was much talk about the perversity of imposing more severe constitutional limitations on a state that has done much — but not everything — to include gay people and to give great leeway to the states that have excluded gay people altogether.

It does make some sense. The states that resist any inclusion have preserved arguments about the function of marriage that states like California have given up by structuring civil unions to provide almost equal treatment. It's hard to articulate a legitimate interest in only withholding the name.

But if the Court wants to leave the issue of same-sex marriage to the political process, why would it attach a consequence to taking the intermediate step of creating the civil unions category? That hampers the very process it would be purporting to enable.

ADDED: Later in the argument, Justice Scalia had this colloquy with Solicitor General Verrilli (who argued against Prop 8):

GENERAL VERRILLI: We are not … taking the position that it is required throughout the country. We think that that ought to be left open for a future adjudication in other States that don't have the situation California has.

JUSTICE SCALIA: So your -- your position is only if a State allows civil unions does it become unconstitutional to forbid same-sex marriage, right?

Amusingly, at exactly this point, Verrilli’s time’s-up red light comes on and he says” “It’s on.” He could have said, “Saved by the light!” But Chief Justice Roberts tells him to go on.

GENERAL VERRILLI: … I would just take out a red pen and take the word "only" out of that sentence. When that is true, then the Equal Protection Clause forbids the exclusion of same-sex marriage, and it's an open question otherwise.

In other words, to recapture that “only” and put it in a paraphrase: He’s only arguing now that his argument is limited to states like California. If he wins this case, in the next case, when the other issue is presented, he will argue that ssm is required everywhere. Anyone can predict that. Roberts pushes:

CHIEF JUSTICE ROBERTS: You [say] it's got to happen right now in California, but you don't even have a position about whether it's required in the rest of the country.

GENERAL VERRILLI: If -- with respect to a State that allows gay couples to have children and to have families and then denies the stabilizing effect.

What state doesn’t “allow” gay couples to have children and families? I can infer that Verrilli means allow adoption by gay couples, but it’s obvious that the concern about children extends to all the states, since a gay person can be a natural parent to a child and then live with a partner who is not the child’s parents.

Roberts doesn’t pursue that but sticks with his original point. Presumably, he's building the argument that it's incoherent to strike down Prop 8 without finding a right to ssm that applies to all the states.

CHIEF JUSTICE ROBERTS: So it's got to happen right away in those States where same-sex couples have every legal right that married couples do.

GENERAL VERRILLI: Well, we think… you can wait in…

CHIEF JUSTICE ROBERTS: States where they have fewer legal rights.

GENERAL VERRILLI: What I said is it's an open question with respect to those States and the Court should wait and see what kind of a record a State could make. But in California you can't make the record to justify the exclusion….

Verrilli is saying that the state that permits adoption by gay couples can’t go back to the argument that a child is better off having both a mother and a father in the home. Does this cure the incoherence? I doubt it. It's a distinction that might be employed by a judge who looks forward to extending ssm to all the states in the next case. I don't think Roberts is one of those judges.

A perceptive question by Justice Breyer at today's oral argument in the Prop 8 case, asked of Charles J. Cooper, who had framed the state's interest in terms of "responsible procreation." It's certainly true that same-sex couples and opposite-sex couples are different in that only sex between a man and a woman can result in children, but what's the harm in letting some couples who can't reproduce get married?

Cooper says:

The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples….

Justice Kagan presses him: What about older heterosexual couples over the age of 55? Their sexual intercourse isn't going to produce children. Letting them marry when they can't procreate ought to present the same problem of centering marriage on adult "needs and desires" instead of on children.

Cooper says:

[S]ociety's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy... advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that...

The fertile party? Yes: The man can still reproduce, just not with this woman.

The marital norm... [is] designed... to make it less likely that either party to that — to that marriage will engage in irresponsible procreative conduct outside of that marriage.... That's... the marital norm. Society has an interest in seeing a 55-year-old couple that is -- just as it has an interest of seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation to reserve that until they have made a marital commitment.... So that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world.

Got that? In this view, marriage is about children and not adult desire because it is a device to rein in male desire, to keep men from fathering children they aren't going to raise. It's not that marriage can keep that bad thing from happening. It just makes it less likely, because the marriage norm is fidelity.

Obviously, fornication and adultery go on despite this marriage norm, and it's hard to see why letting gay people marry would mess up the norm. I'm trying to picture this man at the heart of Cooper's vision of society: He's true to his wife, because he's gotten the message that's the norm, but if some gay people can marry, then he's going to start cheating, knocking up some other woman, and it's because of this guy that gay people can be excluded from marriage?

What a nutty set of things we're asked to believe! Who the hell is this stereotypical married man, constrained by what other people are forbidden to do? And why should his ridiculous, tenuous connection to norms carry the day? And how can obsessing over what makes him tick work to keep marriage focused on the raising of children and not on the emotional needs and desires of adults? It seems to be all about the needs and desires of adults — really ridiculous heterosexual male adults.

Justice Kagan pushed the lawyer Charles J. Cooper to give some reason for excluding same-sex couples from marriage. Cooper seems to be trying to answer, saying that it's "reasonable" to think that "redefining marriage… as a genderless institution" could undermine marriage, making it less effective as a way to enforce "procreative responsibility." Seemingly unsatisfied, Justice Kennedy breaks in to say: "you should have to address Justice Kagan's question."

Cooper talks about how "it is impossible for anyone to foresee the future accurately enough to know exactly what [the] real-world consequences would be" if "this age-old bedrock social institution should be fundamentally redefined." This seems to be the interest in not changing anything until you have pretty good evidence that the change will be for the better. Justice Scalia tries to help, saying that if gay couples were married, there might also be a requirement to permit adoption. Even though California already permits same-sex couples to adopt, so how can California rely on the idea that it's bad for children. Scalia says that the requirement might apply to other states, and there is "no scientific answer" to the question whether having same-sex parents has a “deleterious effect" on children.

At this point, Justice Kennedy says this — boldface added:

I think... that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?

The voices of children raised by same-sex parents — those who live every day within the family structure at the heart of these lawsuits — are too often unheard in the debates about same-sex couples and marriage. Their stories are too often missing from discussions of "traditional" families or "family values," and their personal experiences too often discounted as irrelevant. Although those who oppose marriage for same-sex couples frequently make assumptions about the quality of the children's family lives, the children themselves are rarely asked to explain what they actually experience.

This habitual omission is unfortunate because these children are uniquely qualified to speak about how their families look, feel, and function and how the availability — or unavailability — of marriage as an option for their parents colors their daily lives. These children are also among those persons most directly affected by both the Defense of Marriage Act (DOMA) and Proposition 8.

The voices of lesbian, gay, bisexual, and transgender (LGBT) youth are also too frequently disregarded in these debates. The laws banning marriage for same-sex couples or limiting federal recognition of such marriages leave these young people to question their own dignity and self-worth. This stigmatization has a profoundly negative impact on their self-esteem, sense of purpose, and well-being that threatens to burden them for the rest of their lives.

This brief presents the voices of these children.

If you want to know where Justice Kennedy's heart is. I think it's here.

Cooper stressed the lack of "data" about whether there's "any incremental beneficial effect” to the children in calling it marriage as opposed to just civil unions, but that's only saying there might not be a reason to include same-sex couples. Kagan's question was very specific: "So you have sort of a reason for not including same-sex couples. Is there any reason that you have for excluding them?" Kennedy demanded an answer to that question, and though he acknowledged the lack of information, he leaped from that to the injury to the voice of the children. Obviously, he meant there's an injury to the children and we need to listen to the voice of the children. There was something odd about that leap and the way it was phrased that makes it feel revelatory of the deeper thoughts and intuitions moving Justice Kennedy.

We're very familiar with the old expression "Hard cases make bad law," from which one can infer that easy cases make good law and, perhaps, an idea that judges should make an effort to keep easy cases easy.

In today's case about drug-sniffing dogs, Justice Scalia said that using a property-rights analysis (rather than discussing the expectation of privacy) "keeps easy cases easy." Justice Kagan picked up the phrase in her concurring opinion to say that using both forms of analysis "would make an 'easy cas[e] easy' twice over."

Should we credit Justice Scalia with the new aphorism "kee[p] easy cases easy"? (Note that I'm using the Kagan approach to brackets as I drop the s on "keeps.")

The only near example I found in the state and federal courts database was Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), in which Judge Alex Kozinski said that something "illustrates that easy cases are easy, however one analyzes them." But that's not the same as proclaiming it a virtue to keep easy cases easy, so I give the aphorism to Justice Scalia.

By the way, Scalia loves to talk about easy cases. For example, last fall:

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.

Sometimes when one lawyer says a case is easy, you want to say — as I once heard Professor Henry Monaghan say — "Yes, but which way is it easy?"

There are not 5 votes to strike down #prop8 and recognize equal right to #ssm at this time

SCOTUSblog tweets from the oral argument.

Note the significance of "Would leave in place 9th Cir pro-#ssm ruling." Prop 8 will still be stricken down, because that's what the 9th Circuit decided. I want to see the transcript (and hear the oral argument) before reacting too much to these characterizations.

So Kennedy performed the Theater of the Very Uncomfortable. That could set the stage for exercising the very painful duty of pronouncing a law a nullity. It's supposed to hurt! It's not what we want, but what we must do.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8....

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.

But of course Kennedy would hang back in contrast to the 4 liberal Justices. His difference from them doesn't mean he won't join them in the end.

[W]e need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.

The dog had gone up onto the porch — that is, the curtilage: "The front porch is the classic exemplar of an area 'to which the activity of home life extends.'"

Alito writes the dissenting opinion. The police came onto the property, but only on "the customary path," during the daytime, and for "less than a minute or two." As for privacy:

A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human.

I think that's my first post about same-sex marriage, on February 3, 2004 — 3 weeks into blogging. I was looking for that post — which critiques presidential candidate Howard Dean's pride in the marriage/civil unions distinction — as a result of reading the Ted Olson/David Boies op-ed in the WSJ today.

Googling for the old post with the search terms althouse + Howard Dean + civil unions, I was surprised to find something I'd written in December 2003. That's the month before I started this blog. It turns out there's an archive from the Religion Law email list — a list of lawprofs — and there's a thread I started called "Civil unions and marriage."

Email lists were a sort of proto-blogging back then. I wish I'd busted loose into blogging earlier. All the bloggable things that didn't get blogged:

We chose not to do gay marriage because there were many people who felt that marriage was a religious institution, and churches ought to be able to make their own decisions about who gets married and who doesn't. But we felt it was really important to do equal rights under the law for every single American, and Vermont is the only state in the country where everybody has the same rights as everyone else....

[So why are we quibbling over a name?]

Because marriage is very important to a lot of people who are pretty religious.

That was Howard Dean, back in 2003. Today, in the Supreme Court, we're still "quibbling" over that name. Is it a tiny thing or a big deal?

[O]ur opponents argue that the growing support for marriage equality means that the courts should leave to the states whether to permit marriage equality sometime in the indefinite future.

But as we proved during a 12-day trial that we won in a California federal district court in 2010, laws like Proposition 8 cause devastating harm to gay and lesbian couples and their children. Exclusion from the institution of marriage marks those couples and their children with a badge of inferiority. The damage this does to their hearts and minds is immeasurable—and the damage it does to all of us and our belief in the nation's ideal of equality is incalculable.

For one to say that the Supreme Court should leave the question of marriage equality to the political processes of the states is to say that states should remain free to discriminate—to impose this pain and humiliation on gay men and lesbians and their children—for as long as they wish, without justification. The Constitution forbids such an indecent result. It did not tolerate it in separate schools and drinking fountains, it did not tolerate it with respect to bans on interracial marriage, and it does not tolerate it here.

When I clicked here from Instapundit, I wasn't sure if this title, I had no idea whether the article was about what to seek in post-marriage from the man you are divorcing or the search for a new husband. Turns out it's the latter:

When you're finally ready to remarry post-divorce, you need to know what characteristics to look for in a husband....

Does anyone think like this? Okay, now I'm ready to get married again, what should I want? Somehow you know you want marriage, but you don't want any particular marriage. This sounds like the way some people decide they want to go shopping, and then they try to drum up ideas about something worth buying.

The author of the linked article comes up with 5 traits — e.g., communication skills (strong communication skills) and a sense of humor (a great sense of humor) — that sound like the same list of things she'd put on a traits-for-first-husbands list.

March 25, 2013

Harriet Tubman and the Underground Railroad for escaping slaves. Charles Young and the Buffalo Soldiers. The Rio Grande del Norte in New Mexico. The San Juan Islands off Washington State. The state of Delaware.

Delaware is my home state, so I'm pleased to see:

First State National Monument in Delaware. The monument will tell the story of the early Dutch, Swedish, Finnish and English settlement of the colony of Delaware, as well as Delaware's role as the first state to ratify the Constitution. The park is comprised of three historic areas related to Delaware's rich history: the Dover Green, the New Castle Court House complex (including the courthouse, Green and Sheriff's House), and the Woodlawn property in the Brandywine Valley.

The name of the monument is based on Delaware's nickname "the First State." (It was the first state to ratify the Constitution.)

In medieval times the area was dominated by the trans-Saharan trade. The reign of the Mali Empire, most renowned for the Mandinka ruler Mansa Kankan Musa, brought world wide recognition to the region due to its enormous wealth, scholarship, and civility....

As time went on the area began to suffer from continuous Moroccan and Portuguese invasion and looting. By the end of the 16th century, as the raids continued, the empire collapsed and was conquered and claimed by Portugal....

During the late 17th and throughout the 18th century, Great Britain and France constantly struggled for political and commercial supremacy in the regions of the Senegal and Gambia Rivers....

An 1889 agreement with France established the present boundaries, and the Gambia became a British Crown Colony, divided for administrative purposes into the colony (city of Banjul and the surrounding area) and the protectorate (remainder of the territory).